Turkey Packs the Court

“Yes” (Evet) and “No” (Hayir) ballots at a polling station in Ankara during the September 12 constitutional referendum in Turkey

On September 12, fifty-eight percent of the Turkish people voted in favor of amending their country’s constitution. The international community, including the European Union and the United States, has endorsed the result as a victory for democracy in Turkey. However well-intentioned, that optimism rests, I fear, on a fundamental misunderstanding of what was truly at issue in that vote. To explain, let me turn to an unlikely starting point: the New Deal and Franklin Delano Roosevelt.

In 1937, FDR’s growing dissatisfaction over a number of Supreme Court decisions that held his New Deal programs unconstitutional prompted him to introduce the Judiciary Reorganization Bill. Although the Bill set out to modernize the entire federal courts system, its most significant—and most controversial—provision would have granted the President power to appoint up to six additional Justices to the Supreme Court. The purpose behind the legislation, which never passed, was clear: if a majority of the Court wished to oppose the President’s political agenda, then the President would simply expand the number of Justices to create a pro-New Deal majority on the bench—what his opponents then, and historians since, have called the court-packing plan.

We move away from the US Supreme Court of the 1930s to modern-day Turkey and to a Constitutional Court every bit as obstreperous. But first, the necessary context. The Justice and Development Party (AKP) has been in government since 2002. Led by Prime Minister Erdoğan, the party has roots in political Islam but has advocated a liberal market economy and Turkish membership in the European Union. As part of its re-election campaign in 2007 the AKP proposed constitutional reform on the basis that the 1982 constitution, a document drafted and ratified following a military coup but amended repeatedly since, was no longer adequate to meet the needs of the Turkish people. Work on drafting a new constitution began, but one issue very quickly came to dominate public debate: the prohibition on wearing the Islamic headscarf in universities and other state institutions. In early 2008, the AKP’s focus shifted away from drawing up a new constitution to amending the existing one so as to lift the headscarf ban. The amendment was put to a vote in the Turkish Grand National Assembly, where it was passed with the necessary majority, thanks in part to the support of a key opposition party.

What followed is significant.

The legality of the amendment was immediately challenged before the Turkish Constitutional Court on the basis that it fell foul of Article 2 of the Constitution, which sets out the characteristics of the Turkish Republic. According to this key provision, “[t]he Republic of Turkey is a democratic, secular and social state governed by the rule of law […]” (emphasis added). Moreover, Article 4 provides that amendments to Article 2 cannot be proposed, much less implemented (this is a standard entrenchment clause, rather like Article 89 of Title XVI of the French Constitution which prohibits any constitutional amendment that seeks to change the republican form of government in France). In short, the effect of Articles 2 and 4 is that—short of a revolution—state secularism is a non-negotiable constitutional principle in Turkey. In the Constitutional Court’s view the headscarf amendment was inconsistent with this principle; it had to be annulled.

Shortly after the Court’s decision, the Chief Public Prosecutor of the Supreme Court of Appeals invited the Constitutional Court to dissolve the AKP, arguing that the party had become “the focus of activities against secularism.” The headscarf amendment was, of course, a relevant consideration. The AKP narrowly escaped the ban. (The AKP’s predecessor party, the Welfare Party, had not been so lucky: it was dissolved in 1998 by the Constitutional Court on the very same charge, a decision that both the European Court of Human Rights and its Grand Chamber subsequently held to be lawful.)

Therefore in 2008 Prime Minister Erdoğan found himself in a position similar to that of FDR in 1937: he faced a powerful Court which, to him at least, seemed adamant in its opposition to his political agenda. The September 12 referendum was the Prime Minister’s proposed solution. And it is identical in principle—though different in method—to FDR’s proposed solution: the Prime Minister would simply expand the number of Judges in the Court. To this end, he put to referendum an amendment to Article 146 of the 1982 Constitution which, if passed, would raise the number of members of the Court from eleven to seventeen, such members being appointed by the President (a founding member of the AKP) and by simple majority in Turkish Grand National Assembly (where the AKP holds a strong majority). It was Prime Minister Erdoğan’s court-packing plan.

It is this issue that lay, in my view, at the heart of the referendum. But it is not on this issue that the Turkish people focused their minds or their votes. Why?

First, the referendum took the form of an all-or-nothing vote on 25 very different constitutional amendments. The great majority of these amendments concerned measures aimed at bringing Turkey in line with the European Union: special protections for children, women, the elderly and those with disabilities; the introduction of an ombudsman system; the establishment of an Economic and Social Council; collective-bargaining rights for public servants; and data protection. Therefore, a voter who wished to vote in favor of the EU reform amendments had to vote in favor of other amendments, such as the amendment to expand the constitutional court, which bore no relation whatsoever to Turkey’s accession to the European Union. And this was in spite of the clear guidance issued in this area by the Venice Commission, an advisory body to the Council of Europe of which Turkey is a member: “electors must not be called to vote simultaneously on several questions without any intrinsic link.”

Second, one of the twenty-five amendments put forward was an annulment of a constitutional article (temporary Article 15) banning the prosecution of the perpetrators of the September 12, 1980 military coup. While a welcome takeover to many at the time, the 1980 coup and its immediate aftermath have become profoundly divisive subjects in Turkey. It is fair to say that even those who supported a military takeover then would not condone one now. It is equally fair to say that the AKP used the proposed annulment of temporary Article 15, together with several concomitant amendments regarding the relationship between the military and civilian courts, as the principal basis for their “yes” campaign. Voting “yes” in the referendum meant bringing the coup plotters to justice, among them prominent generals, all now retired. Certain senior members of the AKP party went one step further: voting “no” in the referendum meant that you were a “darbeci”—someone who perpetrates or supports military coups. It was crude, and perhaps irresponsible, but a remarkably effective strategy. (Of course, it remains in doubt whether any of the coup plotters can still be tried, notwithstanding the annulment of temporary Article 15: on one view of the interpretation of the statute of limitations, and with a delicious irony, time to prosecute the coup generals ran out on September 12, 2010, the very day of the referendum.)

Finally, neither the political campaigns surrounding the referendum nor the media coverage of it sought to educate the public about the substance of the amendments. Rather, the focus was on drumming up support either for Prime Minister Erdoğan or for Kemal Kiliçdaroğlu, the new leader of the center-left Republican People’s Party (CHP) that opposed the amendments. The CHP has struggled in recent years as Turkey’s main opposition party, all too often depicted—and viewed by many—as a mere extension of Turkey’s “deep state,” a group made up of officials in the state bureaucracies, judiciary and some ranks of the military establishment who have long seen themselves as the custodians of secularism in Turkey. Much of this constituency—if it can be called that—has viewed with suspicion, and at times vehemently opposed, the reform agenda put forward by a government with roots in political Islam. The referendum presented the CHP’s new leader with an opportunity to show the Turkish people that his party, while opposing this referendum, could speak for all of Turkey and not just the so-called secular elite.

These three factors combined to obfuscate the real issue on which the Turkish people should have been asked to vote: the Prime Minister’s court-packing plan.

That nearly six of every ten voters who participated in the referendum voted “yes,” i.e. in favor of the constitutional amendments, has been viewed as a success for Prime Minister Erdoğan, a vote of public confidence. The result has also been considered a success for Mr. Kiliçdaroğlu who has been credited for running an energetic campaign, for moving the CHP away from simply defending Turkey’s secular traditions, and for starting a process of self-renewal within his party. I would not disagree with either proposition.

However, I cannot share the view, espoused by some in Turkey and a great many abroad, that this referendum process has been good for Turkey in general or for the development of her democracy in particular. It has not been. But what has made the referendum process a failure is not the result but the manner in which it was achieved. It is quite possible that the outcome would have been nearly identical had the voting public been satisfactorily informed about what they were voting on or, indeed, if they had been given the opportunity, as they should have been, to vote on each amendment in isolation. We will never know. What we do know is that those who voted “yes” and those who voted “no” were not given the opportunity to reflect upon, to debate or to vote on—in any meaningful way at least—the principal issue that prompted this referendum: the Prime Minister’s court-packing plan.

The consequence is that Turkey is more polarized today than it was before the referendum process began. If future constitutional reform is to strengthen, rather undermine, Turkey’s democracy and unity then its politicians—from all sides—must seek to engage the public in discussion of actual reforms, rather than simply play on the country’s longstanding divisions. In building a new constitution for our country we must be sure that what we construct will someday be a good house for all Turks. The referendum failed to do this.

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